Posts Tagged ‘Exxon Valdez’

Lawyers being lawyers, and British Petroleum having long since given up that whole “making things right,” and “actions, not words” schtick – at least in reality – of course BP is going to try to use every legal maneuver to pay as little as possible to anyone. Their company’s in trouble now that the Rosneft deal looks blown so yeah, that whole Gulf Coast thing…it’s one big financial/legal liability and since the media interest flags, it’s time for corporate law to rear the ugliest of heads to take the biggest bite they can…

So stated, let’s move on to the latest from British Petroleum’s attorneys in Judge Carl Barbier’s court, shall we?

Turns out (surprise) British Petroleum is of the legal opinion that the claims for economic and punitive damages as a result of their little ‘ol spill, including those who lost jobs/wages as a result of the drilling moratorium, including those first responders who got sick during the cleanup, including basically…everybody, should be summarily dismissed by Judge Barbier.

Oh…but why?

Because these people must go through Feinberg’s GCCF claims process, first.

Oh…but why?

That pesky Oil Pollution Act of 1990, that’s why. Andrew Langer, BP’s head legal talking head argues that OPA states claimants must first attempt to redress their grievances with the responsible party – BP, and if they are then denied by the responsible party, only then can they file a claim in court. Langer also claims the Oil Pollution Act supersedes maritime law, and since OPA doesn’t allow for the punitive damages allowed under maritime law, these claims must be dismissed as well.

Dismissed, just like that…upwards of 130,000 legal claims.

Judge Barbier gave no timeline on when he would rule on the matter, but perhaps Feinberg now should really want to hold off on closing all those GCCF claims offices, you know, just in case.

BP’s desire isn’t surprising, it makes sense they would want these people to go through the GCCF. Much as the oil company would like to control a United States court of law, they don’t, but the GCCF and Feinberg are a different matter. There they hold much more sway. Hell, their guy wrote the rules, the same man Judge Barbier already ruled can’t claim himself as independent of BP. Good ‘ol Ken, the lawyer whose law firm is paid $1.25 million dollars a month by BP. Way back when, the GCCF and Feinberg’s stated mission was to keep people out of court, but this didn’t entirely happen, especially when his “generous” payments turned out to not be so generous after all. So now British Petroleum argues Judge Barbier should rule in their favor and complete Feinberg’s mission for them, kick the claimants into BP’s court, where they can be delayed, stalled, and hopefully, so frustrated that some throw up their hands and take Feinberg’s “generous” claims instead of heading back into court to be delayed, stalled and frustrated anew by BP’s lawyers.

From a legal standpoint, it makes sense. What does British Petroleum really have to lose? Self respect? The goodwill of the Gulf Coast? Well, self-respect and goodwill ain’t worth a dime and this whole mess has appeared to be about the money for this company since day one.

The plaintiffs’ attorneys, of course, disagree with BP, arguing OPA was created after the 1989 Exxon-Valdez spill because legal remedies available at the time were insufficient. They further argue the companies involved in the explosion of the Deepwater Horizon shouldn’t be able to now use OPA as a legal shield to escape punitive damages and throw these legal claims into the GCCF mess. Besides, the oil pollution act of 1990 doesn’t expressly declare an intent to displace maritime law, whereas other statutes that prevent punitive damages do specifically prohibit them.

Judge Barbier, who questioned both sides’ arguments, asked how it is he is supposed to go through the 130,000 cases to determine which should be thrown out and which should be allowed to proceed. Nobody seemed to have an answer on this, beyond saying such a process will be exceedingly time-consuming.

Even more so pehaps, then the GCCF’s claim process.

But British Petroleum wasn’t the only company to get in on this four-hour hearing, and all involved had an argument on why these pesky economic claims should be dismissed. Represented in court were Anadarko, Halliburton, Cameron International and Transocean. Transocean argued that since BP is the responsible party, economic claims should only be made against BP under OPA, and then it would be BP’s right to go after the other companies to pay their share. You see, the people have filed suit against the wrong companies in the wrong order.

In other words, much like Feinberg’s screaming about unsatisfactory documentation, all of the big companies on the hook here are claiming the businesses and the people of the Gulf Coast are doing it wrong, not adhering to the correct process, not filing suit against the right company, not going through the GCCF process first, where they would inevitably be unable to document their claims in the correct way.

Or in other, other words…the claimants, the victims in this colossal fuck-all, the right thing for them to do would be to do as they are told, hurry up and wait, and go back to a GCCF process many consider long since broken.

All unless Judge Barbier, much like finally declaring Feinberg not independent, sides again on behalf of the people so harmed by this disaster, a catastraphuk not of their own creation.

Oh, but that’s not all, there’s more…

On the drilling moratorium: BP also asked for a dismissal of the claims by people who lost jobs/wages as a result of the drilling moratorium, saying it was the government who declared the moratorium, not BP, so why are they at fault? According to the plaintiffs’ attorneys, the moratorium was something the government would reasonable feel was necessary when they realized, hey, those oil rigs aren’t as safe as we ignored/were led to believe and you know what? We don’t have the resources to fight off these kind of spills so we better do a safety check. The plantiffs’ attorneys are also guessing the moratorium wouldn’t have happened had the Deepwater Horizon not exploded and since, under OPA, BP is the responsible party…well…they should be liable because one plus one usually equals two.

Unless you’re watching the latest “making it right,” advertisement by British Petroleum.

Attorneys for Nalco were also in court, the makers of Corexit dispersant and they argued they should have immunity from damage claims by people who got sick inhaling their toxins because the Federal government was in charge of the response, and it was the federal government who chose to use Corexit, “This was a spill of national significance, which put all of the decision-making in the hands of the federal government,” said their attorney.

One might wonder if this attorney is referring to the same government whose EPA expressly ordered British Petroleum to stop using Corexit dispersant, only to have BP refuse…somehow equating BP’s ability to do as they wished throughout the spill response with the ability of the government to be in charge of all the decision-making.

There’s also the matter of all the private contractors who claim they deserve immunity too because they were doing cleanup under the same fully authoritative decision-making of the same federal government who had everyone listening intently on that whole Corexit deal. The plaintiffs’ attorneys in this case rightfully argued said contractors weren’t working for the government, they were hired by and working for BP and thus, why should they have immunity?

The entire hearing lasted a total of four hours and there’s more, but damn, my fingers are getting tired so perhaps I should just try wrapping this up:

British Petroleum, Transocean, Anadarko, Cameron International, Nalco…dismiss everything so we can better direct our funds to making things right for the Gulf Coast…

Residents and businesses of the Gulf Coast…get out of their way, you’re doing it wrong so go talk to Feinberg and he’ll tell you in no uncertain terms just how wrong you all are, while he painstakingly helps you to move on, being the loyal neutral arbitrator that he is…

The lawyers? Well, they’re busy being lawyers…

But most importantly, Judge Barbier, it’s up to you now and I for one, hope your ruling continues the process of finally making things right for all the people along the Gulf Coast that British Petroleum has made so wrong.

So, as I commented two days ago, Alabama Attorney General Luther Strange fired off an angry letter to Ken Feinberg, the BP paid administrator of BP’s compensation fund outlining several objections he had with the process, chief among them being the snail’s pace and meager size of the payments, the lack of transparency in the process, and the stress this is causing to the citizens of his state. Mr. Strange demanded that Ken Feinberg “stop dragging his feet.”

This apparently didn’t sit too well with Mr. Feinberg who promptly wrote a letter of his own, to rebut the charges made by Strange…

Let’s review, shall we?

When it comes to the Quick Pay, Attorney General Strange asserts the reason so many are accepting the quick payments is that claimants are sick of dealing with the GCCF. Feinberg disputes this by writing that claimants take the quick payment because the “claimant cannot prove any further damage.” Maybe, maybe not…many are curious to see if Feinberg is correct in this assumption but its awfully hard tell with so little transparency in the process. Besides, how are we to know if people cannot prove any more damage? Claimants who have accepted quick payments are no longer trying to do so which brings us back to Strange’s assertion, that people choose quick payments out of frustration. One need look only so far as some of the comments being posted by claimants to this website, or the GCCF’s own methodology comments page:

From a business/individual on February 16th, “This methodology is so unfair it now looks good to individuals and business to take the quick pay, you hold all the money and the cards.”

From a business owner on Feb 15th, “Your formula is definitely shaking-down people and businesses that are in a weakened position and are under duress.”

From an individual on Feb 14th, “The thing that really grinds my gears is that you are sitting on 16 billion! You only paid out 3.5 billion to 168,000 claimants…now 1/2 of those are gone because they were desperate and took the quick pay.”

I could continue in this vein, but you get the idea.

Feinberg also combats Strange’s accusation that the GCCF is paying people to go away, that the GCCF is working diligently to protect BP and secure releases for their liability. Feinberg writes how nothing could be further from the truth, that these release are designed to “bring closure to the prospect of endless litigation which is not beneficial either to claimants or the public interest.”

He neglects to mention litigation is also not beneficial to BP.

Nobody likes to go to court Ken, it is a long, drawn out process, but the idea that you are attempting to keep people out of court to give them closure would assume they have otherwise been “made whole.” Seeing how this is far from the case, your suggestion is condescending on two levels: the first being Gulf Coast residents can’t decide for themselves what constitutes closure and the second being people would be so stupid as to not see the waivers as ultimately saving British Petroleum a whole hell of a lot of money.

Next, Strange accused Feinberg of making meager payouts on final claims. Feinberg defends this by once again throwing out large numbers that don’t hold up to some simple math. He says the GCCF has paid $688 million dollars to 28,000 Alabamans. Okay, but this averages out to under $24,000 dollars per claim, a sum Feinberg calls “not an insignificant amount.” I would argue, like Strange, that it is quite insignificant as a large percentage of those claims are not individual claims, but business claims which receive much higher payouts and drive that average up. The future of the Gulf is unknown and the simple idea that these amounts, these averages will compensate for all present and future losses when twenty years after the Exxon Valdez, some industries have yet to rebound is again, laughable.

Feinberg points out that anyone can turn down his offer or appeal it to the Coast Guard. 467 people have tried this and 467 people have been denied, something Feinberg believes shows his process to be fair. Perhaps, or it might also show the Coast Guard is equally stingy and working with the same flawed recovery statistics as the GCCF, recovery statistics that claim the Gulf’s environment will be made whole inside of two years. This is doubtful, as a multitude of independent scientists suggest, and honestly, the Coast Guard has not been a shiny beacon of legitimacy throughout the past year…from Thad Allen’s sweeping pronouncement that they weren’t banning the reporters they were banning, to the way they stated Corexit was no longer being used when it was, to the way they accepted BP’s vastly flawed flow-rates before the well was capped, flow-rates that slowed down the spill response. In fact, I’d be curious to see any example where the Coast Guard didn’t give in to British Petroleum on pretty much anything over the past year, so why would the appeals process be any different? And this doesn’t even touch on the false hope involved in telling claimants if they don’t like the GCCF offer, they can appeal to a different body, a Coast Guard commission that has never ruled in any claimant’s favor.

Ken, isn’t that just kind of rubbing their faces in it?

Next, Strange expressed dismay about Feinberg’s continued inference of fraud being evident in claims made to the GCCF. Feinberg rebuts this by writing the GCCF has sent 1,035 claimants suspected of fraud to the Justice Department, “not an insignificant number.” Actually Ken, it is. Numerous studies have shown that after any major disaster, on average, 10% of claims in any claims process can be considered fraudulent. There have been over 480,000 claims made to the GCCF in total which would make the percentage of suspected fraudulent claims you forwarded to the DOJ ring in at far less than 1%.

Fraud is not a problem in the Gulf Coast claims process, regardless of suggestion by Feinberg, it merely serves as cover to the GCCF’s flaws.

Strange also wonders why Ken Feinberg now omits from his press releases the fact that 310,000 people were denied during the EAP process; the Attorney General further calls this omission another example of the GCCF not being “completely forthcoming.” Well okay, I’ll give that one to Feinberg. He pretty much states these numbers are common knowledge, and they are, so why would he have reason to hide them? The only thing I might consider is that when it comes to framing narratives, and Feinberg is indeed trying to promote the narrative that the GCCF is fair, he probably doesn’t want to start his recitation of final and interim claim numbers by reminding everyone just how many EAP’s the GCCF turned down. 310,000 denials with little to no transparency can cast a long shadow over a conversation on fairness.

Finally, Strange demands more transparency.

He wants Feinberg to release the amount of damages people are claiming versus the amount of damages the GCCF has offered to pay. In response Feinberg writes, “the release of such data would be a useless exercise; indeed it would be counterproductive.”

Useless and counterproductive to who? The GCCF? BP?

He goes on to cite a couple of examples where people have filed ridiculous claims, one person requesting the full $20 billion dollars while another claimant filed damages for $11 billion. Agreed Ken, those claims are ridiculous, but seeing as I can figure that out I’m pretty sure you can trust everybody else to see it as well. You write that people typically file for more damages than they can prove. and this is also true, but what Strange would appear to be looking for is a pattern of low-balling claims, and when your amounts offered are indeed meager, wanting to see this information in order to accurately evaluate your process seems entirely justified.

As I have written before, when it comes to the GCCF, full transparency is warranted. Transparency demonstrates a commitment to justice, to confidence, to credibility, but your credibility has been shown time and time again to be lacking, especially when Judge Barbier ruled you are not “independent” of BP as you so loudly trumpeted for months to anyone within ear shot of the Gulf Coast.

In fact, Barbier ruled you to be a “hybrid entity” of BP, and your claims to transparency are also a hybrid of the real thing, kind of…but not really.

The time where you could be taken at face value, where you could decide what is in the “public interest,” or how the release of information would be nothing more than a “useless exercise” are over. In fact, one could argue, as Strange does in a roundabout way, the only “useless exercise” going on in the Gulf is when you base any pro-GCCF arguments on your word.

Again, from the GCCF comments section come these words from an e-mail sent to you on Feb 14th, “I believe you should revert to the old BP calculations, they seemed fair and well thought out.” Now that is an impressive feat. Ken, once you were a self proclaimed savior to the Gulf Coast, but your Gulf Coast Claims Facility is so backwards, one claimant actually feels BP was the fair one, all along…

Methinks Strange is correct in his words.

Your’s are just one more empty harangue intended to deflect the reponsibility of failing the Gulf Coast.

Several meetings over two days, 2-300 people a meeting and so many, overwhelmingly critical of the GCCF’s Kenneth Feinberg who stood in front of everyone and extended his empathy, said he was doing the best he could, repeatedly said he would check into it, look it up, see what he could do while at the same time emphasizing the people harmed by BP’s oil spill have three options, quick, interim and final payments.

And by many accounts, he gave the appearance of listening.

But among the hundreds of complaints, a large number were critical of the form they must sign to receive the money, the form that waives their right to sue BP and over a hundred other companies for the damage done to the Gulf, the damage that has yet to be fully understood, by anyone.

And though Feinberg listened, nodded and promised, it would appear he heard nothing.

The administrator of the $20 billion Gulf oil spill victims’ fund isn’t yielding to pressure to change a release form that requires those accepting a final compensation payment to give up their right to sue. Washington attorney Ken Feinberg told The Associated Press on Tuesday that the form stands. He spoke to AP after a town hall meeting in Louisiana with spill victims.

Step right up, folks…this oil spill ain’t over, but your time to decide is running out…

Consider the fishing and environmental front:

Oil residue from the BP spill is still being hauled off by the truckload each day from the beaches of the barrier islands off the Mississippi Gulf coast. In another part of the Gulf set to reopen for fishing on Feb 2nd, a shrimpers’ nets are coming out of the water covered in oil. Florida Fishermen are dealing with the anxiety of knowing fish populations collapsed after the Exxon Valdez disaster. A flotilla of Wildlife and Fisheries boats sped into Bay Jimmy at the edge of the Gulf of Mexico in Plaquemines Parish, passing flocks of white pelicans, some still coated in oil. On Blood Beach, Mississippi, billions of baby clam and oyster shells washed up on shore. In the coastal areas of St. Bernard Parish, more than 8 months after the oil spill, their industry has come to a standstill; a fisherman adds there’s not much seafood to sell. At Grand Isle, LA, Louisiana Bucket Brigade’s environmental monitor Peter Brabeck said oil is rolling in on the beaches of the state park and nearby. “I’ve been here many times and I’ve never seen it looking like this,” Brabeck said of the oil mixing in with the beach sands, turning it black.

Dr. Rodney Soto, a medical doctor in Santa Rosa Beach stated he is finding disconcertingly consistent and high levels of toxic chemicals in every one of the patients he is testing, “I’m regularly finding between five and seven VOCs in my patients…these patients include people not directly involved in the oil clean-up, as well as residents that do not live right on the coast. These are clearly related to the oil disaster.”

“I’m concerned with the illnesses like cancer and brain degeneration for the future. This is very important because a lot of the population down here may not have symptoms. But people are unaware they are ingesting chemicals that are certainly toxic to humans and have significant effect on the brain and hormonal systems.” Dr. Soto is most concerned about the long-term effect of the toxins, because they have “tremendous implications in the human immune system, hormonal function, and brain function.”

But all this notwithstanding, Feinberg and the GCCf require claimants to sign the no-sue clause to receive quick and final payments, and after doing so Gulf Coast residents will have no recourse anymore…

None.

Fish depopulation? Ongoing health affects, a hurricane hitting the Gulf to stir much of the remaining oil back to the surface?

Nope.

Feinberg held five meetings in Mississippi and Louisiana and listened to over a thousand people. Despite extending empathy and apology, he extended little else to anyone…

Shrimper Elmer Rogers, who broke down at the meeting in Laffitte, Louisiana, fell to his knees in front of the neutral arbitrator and pleaded with Feinberg, “I’m not asking for the world. I’m just asking for something to live on…Thanksgiving, my kids barely ate. I barely ate,” Rogers said. Christmas was even worse for his young daughter. “You know what she woke up to? No water in the house and no power. Let me go turn my water on. Let me go pay my bills,” Rogers added before dropping to his knees in front of a packed room. “What do I have to do, get down on my knees?”

When the Laffitte meeting was over, Feinberg commented “I fully understand the emotion, and I’ve got to deal with it.”

That’s nice and all to say to the AP, Ken, but according to your interview with the Associated Press?

In a recent article about the $20 billion dollar escrow account and claims process, Ken Feinberg estimated that after all is said and done, he will have paid out 6 billion of the BP Oil Spill trust fund, and he will then return the remaining $14 billion dollars to British Petroleum. These are surprising numbers, especially when you consider the amount of displeasure and suffering in the Gulf today. Second Harvest and Catholic Charities of Louisiana are reporting a 25% increase in demand, much of it attributable to the effects of BP’s spill, especially because most people in the country believe BP is taking care of this increase monetarily (the company is not) and it has resulted in fewer private donations.

The situation in the Gulf is getting worse, with Iray Nabatoff, director of the Community Center of St. Bernard, a Second Harvest partner reporting requests for food, clothing, assistance information and computer laboratory sessions continue to rise. “We’re seeing the ripple effects of the oil spill and the cessation of fishing activities right through the economy,” Nabatoff said. “I think we’re still on the ascending end of this. I wish I could report things are abating. On so many levels, it’s actually more of a struggle now.”

Again, these charities are not covered by the trust fund. These charities are on their own.

In light of this and several other developments, $14 billion dollars being returned to British Petroleum seems almost obscene.

Consider:

Over the past few months British Petroleum has been scaling back the amount of cleanup workers despite continuing reports of heavy oil washing up onshore, and the company also began cutting the pay rates to companies that contract with cleanup workers.

The ever increasing amount of bankruptcies occurring in the Gulf as a result of lost wages, lost businesses and lost lives as a result of this spill.

The amount of people in the Gulf Coast region who are getting sick and the number of people who have been exposed to chemicals and will become sick in the future. If British petroleum doesn’t pay for their health care, after the individual is forced into bankruptcy by medical bills, the state and federal government will be the ones to do so, and what of the pain and suffering caused in the meantime?

As I wrote yesterday, there are numerous accusations being levied at Ken Feinberg that people are being underpaid in an attempt to steer them towards final payments. Feinberg denies this, but it doesn’t change the feeling of many residents on the Gulf Coast. They see 60,000 denials of payment, 147,000 under review, a lack of transparency in the claims process, no details given to explain how the amounts they received were calculated, all the claimants who feel they have little recourse, the changing rules, the pressure of forced decisions.

These feelings don’t come about when people consider a process fair.

And lest we forget, this spill has produced untold environmental impacts to the entire region which are years in the measuring, costwise.

August of 2013 is when the whole claims process is set to expire, when Feinberg states the last check will be sent from the fund. That may seem like a long time but it really isn’t, not in the big picture. This is only two and a half years and it would be my guess that in such a short time frame, some problems will only be really starting to show evidence: physical health, mental health, continued deterioration of fish stock and the environment.

Two decades after the worst oil spill in U.S. history, huge quantities of oil still coat Alaska‘s shores with a toxic glaze, experts say. More than 21,000 gallons of crude oil remain of the 11 million gallons of crude oil that bled from the stranded tanker Exxon Valdez on the night of March 23, 1989.

The oil—which has been detected as far as 450 miles (724 kilometers) away from the spill site in Prince William Sound—continues to harm wildlife and the livelihoods of local people, according to conservation groups.

Dennis Takahashi-Kelso, who was on the ground at the Exxon Valdez disaster as Alaska’s commissioner of environmental conservation, remembers wading through knee-deep pools of bubbling, thick oil. The smell of the pure oil was intense and pungent, he said.

When he returned to the same beaches years later, he found “surprisingly fresh” oil just below the sand.

That’s twenty years later; two and a half years ain’t shit…but for BP, their escrow account disbursements will be over. As for the Gulf of Mexico and its residents, the trouble may still be in its infancy and at that time, as Feinberg estimates, British Petroleum will walk away from the Gulf with $14 billion dollars.

“Tomorrow morning, the Gulf Coast Claims Facility is up and running,” said Ken Feinberg, appointed by Barack Obama to administer the $20 billion dollar escrow fund, “BP is out of the claims-processing business beginning tomorrow.”

In many respects this is good news. Kenneth Feinberg has promised to get reparations money into the hands of residents within 48 hours and to business owners within a week. This will enable many families to pay rent and mortgages and otherwise financially begin the struggle back from the infliction of BP’s Catastraphuk, and for many businesses, it will be the difference between staying open and closing down. The way this picture has been presented, Feinberg is a neutral arbitrator, beholden to no one so everybody wins. Everyone, including British Petroleum, and it turns out the person who rigged this game is none other than Kenneth Feinberg.

First, the easy part: any resident who can show financial impact from the spill are due emergency payouts with no strings attached, and this will continue until November 23rd. After this date, however, the rules of the game will change dramatically. When Gulf Coast residents apply for a final damages payment, an amount to be determined by Feinberg and his team they will be forced to make a choice. If they accept the payment they waive their right to sue BP at a later date for any successive damages, but if they turn the payment down, they may have to wait years, decades even for any compensation as their claim make its way through the legal system. Feinberg has promised to be more generous than any court. He has stated that if he doesn’t find you eligible for a final payment no court will, but eligibility for payment is not the point. The point is the amount of time it would take to go through the courts versus the difficulty inherent in Gulf Coast residents trying to determine what amount is an acceptable final payment for what they’ve lost and might still lose.

And having to make this determination, having to decide how much is fair and having to decide now, to give up your right for future compensation?

This was Feinberg’s idea.

From the AP:

The new administrator for claims by Gulf oil spill victims says it was his idea, not BP’s, to require that anyone who receives a final settlement from the $20 billion compensation fund give up the right to sue the oil giant.

Now as it has always been, this choice is a game of craps. What was unknown is it was Feinberg, not BP who loaded the dice. Gulf Coast Residents are being asked to make a determination on how long this spill will impact their lives, when the only thing we know for sure is nobody knows how, or how long this spill will do so. Feinberg’s rules appear to assume the Gulf’s recovery is on a constantly improving trajectory, when the evidence coming out of the Gulf shows this trajectory to be anything but constantly improving.

For example:

1. When British Petroleum chose to use dispersants to fight this oil spill, they drove the oil under the surface where the havoc it is wreaking on the environment is not completely understood, and won’t be understood for many years to come, long after Feinberg’s final payments are issued.

2. The long-term health effects of the dispersants and the crude oil on Gulf Cost residents remain unknown. Significant medical studies were never done on cleanup workers after the Exxon Valdez spill in Alaska. Scientists instead have had to pull together a collection of studies on possible long-term health effects from toxic chemicals found in crude oil and the health effects of these studies include severe DNA degradation which can lead to cancer, birth defects and irreversible neurological damage. No such effects will be known until after final payments are received.

3. Nobody knows what might happen the first time a hurricane makes landfall on the Gulf Coast after churning through the Gulf of Mexico’s waters, but the potential exists for storm surges carrying crude and dispersants inland where it could do further damage.

4. Nobody knows the full financial impact if tainted seafood makes it to market. Evidence is being found of dispersants and oil entering the food chain and lately it has been revealed that the FDA weren’t even testing seafood for toxic heavy metals known to be in crude oil, despite the catch coming from known oiled areas.

5. The Macondo Well has yet to even be permanently sealed. What if something has gone wrong, or something does go wrong with the relief wells or sea floor as many believe? Oil could or will continue to leak into the gulf from the ruptured well for many years to come, many years, more damage…again, after final payments are issued.

None of these situations are static, yet Gulf Coast residents will soon be asked to choose if the final payment offered is enough to cover the damages from any one of these potential eventualities, or possibly a combination of several and should any occur, the choices made could save British Petroleum millions more in future lawsuits.

Feinberg has described his claims program as “entirely voluntary,” and though on paper he may be right, when real life steps in it becomes murkier. Programs are only voluntary when people are not feeling severe financial pressure. When people can’t afford the time it will take to exercise their legal right to sue, a program is not voluntary.

Feinberg likes to point out how it took 20 years for people to settle damages after the Exxon Valdez spill in Alaska. By the time Alaskans were being compensated, a number of people impacted by that spill were no longer even alive to collect their payments and the speed of compensation in the Gulf Coast is one of Feinberg’s oft-repeated selling points. People are out of work. Businesses are closing. Families are fracturing. People can’t pay their rent, their mortgages their utility bills or put food on the table. Feinberg’s emergency payments will take care of much of these smaller financial burdens, but the largest burdens are left beholden to the final payments: potential medical bills, any sort of job or future security, peace of mind for thousands who would not have had to worry about such things if not for British Petroleum’s Catastraphuk.

And for these final payments, they will be asked to make a choice, an estimate based on facts they don’t have, and to make matters worse, this lack of clarity is compounded by the “facts” they do have, many of which remain suspect. Reports from the EPA, FDA, NOAA all called into question by whistle blowers and independent scientists, and many more newer, potentially more detailed reports are quashed by British Petroleum’s hiring and silencing of so many other university scientists, along with the government’s decision to quickly following suit with the same tactic, all for the stated purpose of legal defense and prosecution.

Well, just try deciding how much your family’s life, livelihood, culture and future is worth while in the middle of a fog of doubt and distrust.

Or better yet try imagining:

Your house has suffered a fire, and while standing on the sidewalk watching it smolder, along comes an arbitrator offering you a settlement amount before the fire damage is inspected, would you accept? How about if you found out upon receipt of payment you would have no legal recourse after any inspection and the person who decided you would have no legal recourse was the arbitrator. How about if the firemen who put out your fire were hired by those who set it, and you suspected they all had been misleading you about the damage ever since the fire started, oh and your kids beside you are coughing from smoke inhalation and they haven’t been to a doctor yet. And you knew that when your neighbor’s house burned down, it took them twenty years to get their settlement? Let’s not forget your livelihood was an in-home business, also burned and didn’t ya know that winter is on the way…would you then feel the choice you had to make is a fair choice, or even that you had a choice?

If so, then roll the dice and welcome to the Gulf Coast.

Welcome to Feinberg’s bigger and better deal.

Your neutral arbitrator of of the $20 billion dollar compensation fund is the one, not BP, who decided to apply the pressure of a “no sue” clause.

Ken Feinberg said today he hasn’t been able to start writing claims checks because BP PLC has not yet deposited any money into the $20 billion escrow fund it promised to create.

“I don’t want the check to bounce,” Feinberg said.

BP spokesman Justin Saia said the company’s agreement with the White House is still being finalized. “Funds will be made available immediately upon the conclusion of this process,” he said.

Well, okay then…

Sorry Justin if you’re not necessarily trusted…put the money where your oil is. As this article points out it would be a really dishonest thing for BP to leak a profit margin of 5 billion dollars in anticipation of their shareholders meeting on July 27th, for the purposes of gauging response, only to declare bankruptcy before August 10th if their stock doesn’t get a strong enough boost. August 10th is the date Feinberg gets control of the account…yes, it is complete speculation and perhaps even a worse case scenario, but seriously, it’s getting hard to expect anything less from British Petroleum than the worst case.

Here’s what Kenneth Feinberg had to say to CNN:

In an accompanying link, the payment system is discussed and it does raise some interesting questions. Basically, according to Feinberg:

1. For 90 days after the spill is permanently stopped, Feinberg will give emergency payments worth six months of lost wages or business income to those with valid claims.

2. 90 days after the spill is permanently stopped, any claimant has three years to ask for a lump sum payment that will cover a lifetime’s worth of damage from the spill.

3. To accept the lump sum payment, the claimant has to give up their right to sue BP at a later time.

4. Anyone who doesn’t believe the lump sum offer is enough can refuse and sue BP for the amount they feel they deserve.

This begs a number of questions…What constitutes a valid claim? I’ve read numerous articles discussing the oft-times poor record keeping by many fisherman, what will that cost them now? Also, how does one estimate a lifetime’s worth of damage? Is that Feinberg’s role, to determine this? How the hell does he know? And, giving up the right to sue BP, the fisherman have a three-year window…that window is too small, especially for those who have been out helping clean this mess up…some health effects won’t be known for much longer than three years and I doubt potential medical bills will be considered by Feinberg in his estimations. By the time everyone starts getting sick, the lump sum payment window could be closed and then you’ve lost the right to sue. The workers in Alaska cleaning up after the Exxon Valdez had it worse than rough; their life expectancy was only 51 years and two-thirds of the workers got sick. How to estimate the future costs of getting sick? How sick?

In one of the largest nesting areas for seabird off the Louisiana Coast, the oil has come ashore. At least 300 brown pelicans and hundreds of terns have been seen with everything from spots of oil to complete coverage…all of it fatal as even spots prevent the birds from regulating their body temperature. These bird are not reflected in the federal count of killed wildlife because they have not been collected, something that must be done to make their doom official. This is beneficial in two ways as it allows the federal government to keep the wildlife death rate low, and it also allows BP executives to sleep better at night, something they desperately need after a full day of fighting oil slicks.

Oil hit Raccoon island on July 10th, but unlike a spill such as the Exxon Valdez where the oil pays only one visit – BP, with its use of dispersants has assured that the initial wave of oil pushed ashore by Hurricane Alex will only be one of many more to come.

So, Mr. Scott Dudley, I am sure that you and all of your BP executive buddies who referred to the halt of oil today as a “great sight” are excited and everything, but take a look around…a real look.

“Great sight” is not a term to use in relation to anything in this mess of your creation. Just ask a fisherman, or a dead pelican…ass.

Email Subscription

Link Up

Kurt Vonnegut says:

Still and all, why bother? Here's my answer. Many people need desperately to receive this message: I feel and think much as you do, care about many things you care about, although most people do not care about them.
You are not alone.

William Burroughs says:

The people in power will not disappear voluntarily, giving flowers to the cops just isn't going to work. This thinking is fostered by the establishment; they like nothing better than love and nonviolence. The only way I like to see cops given flowers is in a flowerpot from a high window.

Marshall McLuhan says:

An administrator in a bureaucratic world is a man who can feel big by merging his non-entity in an abstraction. A real person in touch with real things inspires terror in him.

Charles Bukowski says:

There was something about New Orleans, though it didn't let me feel guilty that I had no feeling for the things so many others needed. It let me alone...

Henry Miller says:

The city is loveliest when the sweet death racket begins. Her own life lived in defiance of nature, her electricity, her frigidaires, her soundproof walls, the glint of lacquered nails, the plumes that wave across the corrugated sky. Here in the coffin depths grow the everlasting flowers sent by telegraph...

E.M. Forster says:

A facade of skyscrapers facing a lake and behind the facade, every type of dubiousness.